The opinion
MERRILL, Circuit Judge,
concurring:
I concur in Judge Nielsen’s opinion but reach his part II result by a slightly different route. In my view the Hearing Officer was relieved of any duty to make an inde *1373 pendent evaluation of privilege by Heath Tec’s failure to attempt to meet its eviden-tiary needs without resort to privileged testimony. No showing of testimonial need on the part of Heath Tec having been made, there was nothing against which the Hearing Officer could weigh the importance of preserving the confidentiality of investigative files.